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Acevedo v. State

Supreme Court of Florida

May 18, 2017

CARLOS J. ACEVEDO, Petitioner,
v.
STATE OF FLORIDA, Respondent.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

         Application for Review of the Decision of the District Court of Appeal - Certified Direct Conflict of Decisions Fourth District - Case No. 4D14-3124 (Broward County)

          Peter D. Webster, Christine Davis Graves, and James Parker-Flynn of Carlton Fields, Tallahassee, Florida, for Petitioner

          Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Celia Terenzio, Bureau Chief, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, Florida, for Respondent

          QUINCE, J.

         This case is before the Court for review of the decision of the Fourth District Court of Appeal in Acevedo v. State, 174 So.3d 437 (Fla. 4th DCA 2015). The district court certified that its decision is in direct conflict with the decision of the Fifth District Court of Appeal in Durant v. State, 94 So.3d 669 (Fla. 5th DCA 2012). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we approve the decision of the Fourth District Court of Appeal and disapprove of the decision of the Fifth District Court of Appeal to the extent that it is inconsistent with this opinion.

         STATEMENT OF THE CASE AND FACTS

         Carlos Acevedo was convicted of lewd and lascivious battery, three counts of lewd and lascivious molestation, and lewd and lascivious conduct. The trial court found him to be a sexual predator and sentenced him to life in prison on each count, to run concurrently. The trial court declared him to be a dangerous sexual felony offender (DSFO), pursuant to section 794.0115(2), Florida Statutes, and imposed a mandatory minimum twenty-five-year sentence. Acevedo, 174 So.3d at 437. Acevedo's sentence was affirmed on direct appeal and, after the denial of his 3.850 motion, Acevedo filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that the predicate conviction used was insufficient to qualify him as a DSFO. Id. Specifically, Acevedo argued that the prior conviction under section 800.04, Florida Statutes (1981), did not contain elements similar to section 800.04(4), Florida Statutes (2005), or section 800.04(5), Florida Statutes. The Fourth District Court of Appeal disagreed and certified conflict with the Fifth District's decision in Durant. Id. at 439. This review follows.

         DISCUSSION

         The issue before this Court is whether, under the Dangerous Sexual Felony Offender Act, section 794.0115(2)(e), Florida Statutes (2005), a conviction for an offense under section 800.04, Florida Statutes (1981), constitutes a "similar offense under a former designation" to those offenses enumerated in the Act. Because we find that a "similar offense" for the purposes of the Act need not be an identical offense, we approve the Fourth District's decision below.

         Because this is an issue of statutory interpretation, this Court's review is de novo. Plott v. State, 148 So.3d 90, 93 (Fla. 2014).

The DSFO Act provides:
Any person who is convicted of a violation of section 787.025; section 794.011(2), (3), (4), (5), or (8); section 800.04(4) or (5); section 825.1025(2) or (3); section 827.071(2), (3), or (4); or section 847.0145; or of any similar offense under a former designation, which offense the person committed when he or she was 18 years of age or older, and the person: . . .
Has been previously convicted of a violation of section 787.025; section 794.011(2), (3), (4), (5), or (8); section 800.04(4) or (5); section 825.1025(2) or (3); section 827.071(2), (3), or (4); section 847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph; or of any offense that is a felony in another jurisdiction, or would be a felony if that offense were committed in this state, and which is similar in elements to an offense described in this paragraph, is a dangerous sexual felony offender, who must be sentenced to a mandatory minimum term of 25 years imprisonment up to, and including, life imprisonment.

§ 794.0115(2)(e), Fla. Stat. (2005). In short, the DSFO Act states that anyone previously convicted of one of the enumerated felonies or "of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph" is a dangerous sexual felony offender. In 2005, those enumerated felonies were:

• Luring or enticing a child, section 787.025, Florida Statutes (2005);
• Sexual battery, section 794.011, Florida Statutes (2005);
• Lewd or lascivious battery or molestation committed upon or in the presence of persons less than 16 years of age, section 800.04(4) and (5), Florida Statutes (2005);
• Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person, section 825.1025, Florida Statutes (2005);
• Sexual performance by a child, section 827.071, Florida Statutes (2005); and
• Selling or buying of minors, section 847.0145, Florida Statutes (2005).

         In 1982, Acevedo was convicted of violating section 800.04, Florida Statutes (1981). In 1981, section ...


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